Daughters rights on ancestral property

brsasireddy (Querist) 28 August 2023 This query is : Resolved
All,
I am planning to buy an agricultural property in Tamilnadu about 1 acre. Going back to history.

It is an ancestral property. The father had 13 acres.

Three of their sons divided the property equal share 4 acres each and 1 acre given to mother in 1999 by registered partition deed without 2 daughters (Father died in 1995 and daughters never signed the 1999 partition deed). In 2009 the daughters went to court and filed suit for their share. The case is pending last 14 years and no light for them. Now one of their son is selling 1 acres, I would like to provide you opinion the risk of buying this property.
My two questions please,
1. What is the risk of buying this property from one of their son.
2. How the Dec 20 2004 amendment to the daughters coparceners rights affects this property, as already partition happened in 1999.

Thanks
Shashi

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kavksatyanarayana (Expert) 28 August 2023
The daughters have equal rights with other legal heirs over the property. One of their sons means whose son? No legal heir can sell the property as the case is pending before the court. Not advisable to purchase.

brsasireddy (Querist) 28 August 2023
The legal heir of the property (one of son of the property got thru the partitioned deed).

Thanks
Shashi

kavksatyanarayana (Expert) 28 August 2023
There is a court case pending on the property. So cannot buy such property.

brsasireddy (Querist) 28 August 2023
Is it legal to buy the property when case is pending?. No stay order from the court as of now.

T. Kalaiselvan, Advocate (Expert) 29 August 2023
Father is reported to have died in the year 1995 whereas the legal heirs excluding two daughters have inherited the property by a partition deed.
This can be considered as deprivation of rights to share in the property.
The daughters are entitled to a share in their father's properties if he is reported to have died intestate, as per Hindu succession act, 1956.

Therefore it is not advisable to purchase the property which is under civil dispute.
Since the daughters are entitled a rightful share in the properties, you will be unnecessarily dragged into the case as necessary party if you purchase any share in the property.

brsasireddy (Querist) 29 August 2023
Thanks for your reply, But I see this,

######Until this clause came into existence, the only condition for inheritance was that the daughters could not ask for a share if the property was alienated or was partitioned before December 20, 2004, when the Bill for the amendment was passed.#####

According to the Hindu Succession Act, of 1956, daughters were not entitled to succession or have any right to the property of their ancestors. Let us see the Supreme court judgments on ancestral property.

This fact was amended in 2005, through a landmark Supreme Court judgement on September 9, 2005. This is to give equal rights to daughters in terms of their father’s assets and properties. You must understand the ancestral property rights of married daughters as well.

What Is Ancestral Property?
The term ‘ancestral property ‘ refers to a property that your great-grandfather acquired from his father. From generation to generation, it has been passed down from family to family without being divided or partitioned by any of the members of your family up to the present day.

Can a Daughter Claim Ancestral Property?
It is absolutely possible for her to do so.

After the Supreme Court issued its judgement, a minor clause was included by the court. This clause was designed to apply only in cases where an ancestor passed away on or after September 9th, 2005, in order to grant the right to inherit. The judgement’s effective date is the date it was issued. Consequently, the daughters are now entitled to inherit their father’s property due to the Supreme Court’s ruling. It should be noted that the judgement does not have any retrospective effect.

Implications of the Amendment
If a father passes away after September 9th, 2005, his daughter is now entitled to inherit shares of ancestral properties that are due to her. However, if the father passed away before the mentioned date, the amendment made to the Act will not be applicable, and the daughters will not be able to claim any share in the ancestral property.

Therefore, if a daughter has inherited the ancestral property of her father, she may become a coparcener of the property. Nevertheless, the amendments to the Act will only be effective as of the date of their commencement.

Until this clause came into existence, the only condition for inheritance was that the daughters could not ask for a share if the property was alienated or was partitioned before December 20, 2004, when the Bill for the amendment was passed.

Thanks
Shashi

brsasireddy (Querist) 29 August 2023
I just went thru this,

Supreme Court ruling in Prakash and Ors vs Phulvathi and Ors
The Supreme Court gave two basic clarifications with regard to the 2005 amendment made in Section 6 of the Hindu Succession Act 1956. Firstly, the court held that if a partition has taken place before 20th December 2004 then the daughter cannot seek a petition for a partition again. Secondly the court held that a daughter can be called a coparcener if her father is alive on the date 9th September 2005. And the act or the amendment is not applicable retrospectively, that is the daughter can be a coparcener from 9th September 2005 and not from her birth. Also, the Supreme Court of India laid a precondition that if the daughter wanted to claim any right then the father must have been alive at the time the enforcement of Amendment Act 2005 was done. The reason behind the same was if the father had already died it is presumed that the Succession had already taken place and the estate or his property have already been shared or vested to his legal heirs as per the law which was in enforce prior to 2005.

Lastly the condition laid down by the court was that the daughter must be alive at the time of the enforcement of the Amendment and if the daughter had died prior to the amendment then her legal heir cannot claim the right or share in the property.

Thanks
Shashi

SIVARAMAPRASAD KAPPAGANTU (Expert) 30 August 2023
I fully agree with Expert Shri T. Kalaiselvan.

When Father died in testate and among the surviving legal heirs only Sons partitioned the property without obtaining no objection from the Daughter/s or giving due share to the Daughter/s, such partition deed is likely to be cancelled by Court as and when Judgement is passed. It is better for you not to purchase the property.

T. Kalaiselvan, Advocate (Expert) 30 August 2023
The judgment what you have quoted here is different top the situation you have norrated in your original post.
The property left behind by the father was his own and absolute property even though he had inherited from his father, as his share.
In that situation, the Hindu Succession act, 1956 will apply wherein the daughters are also entitled for an equal share at par with the sons if the father is reported to have died intestate.
It is reported that the father died in the year 1995 and subsequently the sons divided the property in the year 1999 along with their mother among themselves by excluding the daughters.
Thus in this situation the position of law is that the daughters are entitled to an equal share in the property,
Therefore as per law the court will pass a judgment enabling the daughters to get an equal share in the property at par with the male siblings of the daughters.

brsasireddy (Querist) 31 August 2023
Thanks for your reply Shri T. Kalaiselvan Sir,
I agree with you. I just went thru the suit filed by the daughters advocate in 2009. The advocate clearly mentioned "The schedule mentioned properties are all joint family ancestral properties of the late Mr xxxx (father's name). "

It is not his own or absolute properties.
If that is the case, what is the probable outcome?

Thanks
Shashi

brsasireddy (Querist) 31 August 2023
The wordings from the plaintiffs advocate in the suit is,

"The suit schedule properties originally were the ancestral properties of the plaintiffs father namely Vasantha Setty. After the death of Vasantha Setty father Muniyappa, Vansantha Setty and his children namely plaintiffs and his 3 sones were in joint possession of the suit schedule properties. Partition was not effected either during the lifetime of the plaintiffs father or after him"

Thanks
Shashi

brsasireddy (Querist) 01 September 2023
Hi Kalaiselvan Sir,

Your input based on my response is appreciated very much.

Thanks
Shashi

T. Kalaiselvan, Advocate (Expert) 02 September 2023
Just because the plaintiff advocate has stated that this is ancestral property, it cannot become ancestral property.
The property in the hands of the father, who had actually inherited from his father, will not become ancestral property.
Ancestral property is a property inherited by a Hindu family from their father, grandfather or great grandfather by birth. It is an undivided property from four generations which is inherited. If a property is inherited by any other relations then it is not considered as an ancestral property.
No you can understand what nature of property it is.
If there was any partition or inheritance in between then the property extinguishes/loses its ancestral nature

brsasireddy (Querist) 22 September 2023
Hi Kalaiselvan Sir,
We went and checked the history of the property since 1920 in the sub-register office. No partition, gift or will on the properties. There is one transaction of their grandfather purchased (self acquired in 1967) , 1.75 acres of land and added to the ancestral pool. Till the partition happened in 1999 , no transactions other than one purchase. I believe it is clear evident to say "ancestral property" until 1999 . Can you please provide your opinion of purchasing this land?.

Thanks
Shashi

T. Kalaiselvan, Advocate (Expert) 23 September 2023
A legal opinion for purchasing an immovable property can be rendered only after scrutinising the entire property related documents.
The information you gave about the property on your own understanding based on the judgments what you referred cannot relied upon to a situation which is still in dark.
Hence it is advisable that you obtain a proper legal opinion from any advocate of this forum or outside but by producing all relevant papers in this regard and you can proceed with the purchase only if recommended.

P. Venu (Expert) 04 May 2024
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